Jimmy Lai’s Conviction Shows How Far Hong Kong Has Fallen

The outcome of Jimmy Lai’s trial in Hong Kong was released overnight. Lai was found guilty of all charges against him. These included offences under the National Security Law of 2020, introduced after the significant pro-democracy protests of 2019 and early 2020. The most serious of the charges, collusion with foreign forces to endanger national security, carries a sentence of 10 years to life. To remind you, Lai is now a man of 78 who has been on remand before and during his trial since 2020. The process is part of the punishment yet again. The trial has been delayed on occasion for medical intervention for Mr Lai, including for heart palpitations and diabetes.

Lai made his considerable fortune from the Giordano fashion chain and then went into media, notably via the Daily Apple which was Hong Kong’s biggest selling newspaper until its forced closure in 2021. The Daily Apple was a consistent advocate of democracy in Hong Kong, including during protests in 2014 and 2019, and it was this that set up conflict with Beijing. Lai is a British and Hong Kong dual national.

Mainstream media outside Hong Kong have presented the case as an assault on free speech. The authorities here in Hong Kong have denied this, with some justification. Instead they argue that the case was about national security. Your author suggests the case was actually about the end of the existing Hong Kong legal system.

Readers may not know that the judicial system in Hong Kong is a curious hybrid of the ‘old’ common law system left by the British after 1997 and the Chinese system. For instance, High Court judges include overseas Commonwealth judges from the UK and elsewhere. This was done initially to send a message about Hong Kong’s judicial independence such that the world could be confident in the new Chinese future of Hong Kong.

But there are several features of the trial which undermine what would be regarded as proper process under common law.

The first of these is the appointment of the three judges. Judges who are to hear National Security Law cases come from a group ‘designated’ by the Chief Executive (similar to a first minister in Scotland or Wales in the UK). The Chief Executive appoints these personally on advice from the Justice Ministry. Their terms of office are unknown. In this case two of the three judges qualified to practice law in Hong Kong and the UK pre-handover in 1997. The third is apparently local. What the criteria are for ‘designation’ is also unknown. The separation of executive and judiciary is thus somewhat blurred.

The same Justice Ministry appealed against the decision to give Lai (very) conditional bail at the start of 2021 on the grounds that security issues had to imply remand in custody. Not that such a provision featured in the law passed only months earlier.

The same Justice Ministry – not the court– ruled that there should not be a jury for Lai’s trial. Secretary for Justice Paul Lam cited the “personal safety of jurors and their family members” and a “risk of perverting the course of justice if the trial is conducted with a jury”. Juries pervert the course of justice in Hong Kong, apparently.

During the trial there were many arguments as to admissible evidence. Specifically there was debate as to whether actions on the part of Lai before the National Security Law (NSL) was passed could be taken into account. The law was introduced in 2020, but charges were laid relating to actions from April 2019, over a year before the NSL was implemented. Arguments against this retroactivity were dismissed – the prosecution argued that Lai could still be criminally liable “even if the agreement was lawful when entered into”. Retrospective law is contentious at best.

As to Lai’s testimony, Judge Esther Toh told the courtroom that Lai’s testimony was “evasive” and “unreliable” and that Lai had long held “resentment and hatred” toward China. That may be a matter of opinion and could perhaps be supported by evidence. But the 855 page judgment also stated that Lai had “poisoned” the minds of people with “venomous” comments. He had wished to make China a “lackey”. This is hardly the vocabulary of an evidence-based legal judgment. Lai was also held liable for “implicit (rather than express) requests” for sanctions. An example? Lai’s comment to a Fox News journalist that “we need all the help from America” without expansion.

So a case which features handpicked judges, a Justice Ministry appealing its own judges, the same ministry implying clauses into recently passed laws, the abandoning of juries in case they might pervert the course of justice, retrospective laws, implied crimes and emotive vocabulary all feature in this sorry case. Many will feel sorry for Jimmy Lai, but there is more to be pitied than that – the Hong Kong legal system has undermined itself thus far in this case.

Thus far? Curiously, Lai may just have a better chance if the case gets to the Court of Final appeal. It is there that an overseas judge or two could still preside on the panel of three judges. Their weighting of the legal principles above might be interesting to hear. The two UK overseas judges remaining on the designated panel are Lord (Nick) Phillips and Lord Neuberger, each a former president of the UK Supreme Court. Three other British judges have recently left the panel though, including Lord Sumption. He quit because Hong Kong “was slowly becoming a totalitarian state”. Not a good sign for Jimmy Lai.

Reaction in Hong Kong has been largely predictable.

The Hong Kong and Macao Affairs office (Beijing’s representative in Hong Kong) said “the people of the whole country are filled with righteous indignation… and strongly demand that he be severely punished”. I see little evidence of this.

Supporters of Lai – many reluctant to be visible – issued statements in support of press freedom and pleas for fairness in the treatment of an old man who has already been imprisoned for five years. The Hong Kong Free Press seemed to tread carefully by giving a detailed account of events and passing, at least for the time being, very little comment. Most disappointing for your author was the response of the SCMP (South China Morning Post). For many years a highly regarded and objective newspaper, today it carries an editorial entirely supportive of the verdict. The SCMP says “the West tried to misrepresent the trial as damaging to press freedom”. This is partly true, as acknowledged above. Instead, the SCMP goes on: “The trial is about national security.” But your correspondent’s view is that it was more about dismantling Hong Kong’s judicial process and many of its safeguards.

By chance, the author today was on Hong Kong Island and recalled a famous quote by Sun Yat Sen, leader of the first China revolution in the early 1900s. Sun admired many Western ways. Hong Kong under the British, he said, “showcased.. their rule of law”. Under the Chinese, Hong Kong now showcases another country’s ‘rule of law’.

Kwai Lou is the pseudonym of a writer based in Hong Kong.